Equitable servitude

An equitable servitude is a term used in the law of real property to describe a nonpossessory interest in land that operates much like a covenant running with the land. In England and Wales the term is defunct and in Scotland it has very long been a sub-type of the Scottish legal version of servitudes, which are what English law calls easements. However covenants and equitable servitudes in most of the jurisdictions across North America, are slightly different. The usual distinction is based on the remedy plaintiff seeks and precedent will allow for the scenario in question. Where the terms are unmerged, holders of a covenant seek money damages; holders of equitable servitudes seek injunctions. The term used to exist in England widely before Tulk v Moxhay and as byproduct of the Judicature Acts became one of the fullest mergers of equity and common law in England and Wales so as to agree initially on the term "equitable covenant", then coming to be united in the term covenant save that "equitable" bears a particular meaning in English property rights since at least 1925: it means not fully compliant with registration/written formalities. If lacks legally routine formalities it is not a full legal covenant and therefore more tenuous, often only enforceable personally and against the original covenantor (in personam).

Equitable servitude remains conceptually unaltered from its original core meaning however in many derived jurisdictions today. It describes wherever a party is in a non-criminal way forbidden from certain use (of land) in such a way as for breach to justify prohibitory or mandatory action to be ordered by the court. The term usually applies only to permanent restrictions, others may more commonly branded rules, terms of use, private byelaws or restrictions.

The first example was wherever there was an enclave, the land owner would forever, while it is necessary, enjoy an implied positive servitude over the intervening land. In England and Wales that scenario is almost exclusively expressed in terms of implied easements in modern parlance.

In the United States, negative and affirmative equitable servitudes remain a live legal concept in their own right. It is a covenant that equity will enforce in equity, rather than in the common law, against the successors of the burdened land who have notice of the covenant. If such notice is by constructive knowledge, such as the enquiries an ordinary purchaser ought to have made, then the covenant is known as "implied".

Creation

An equitable servitude must be created by a writing, unless it is a negative equitable servitude that may be implied from a common scheme for the development of a residential subdivision, so long as landowners have notice of the agreement. Implied negative servitudes, however, are not recognized in some states, such as Massachusetts and California.

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